Hatari Security Guards Limited v Oduor (Appeal E043 of 2024) [2025] KEELRC 1112 (KLR)
The bottom line
#A Kenyan security company lost its appeal because it could not produce employment records, but a resigned employee's gratuity award was struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent was entitled to payment for rest days not taken (Kshs. 106,715/-)
- 2.Whether the Respondent was entitled to gratuity (Kshs. 117,017/-) despite voluntarily resigning
- 3.Whether the award of leave pay (Kshs. 39,006/-) was erroneous given a prior payment of Kshs. 14,030/-
- 4.Whether the award of half costs of the suit to the Respondent was erroneous absent a demand letter
Key legal issues
#Entitlement to payment for rest days not taken
The trial court's award of Kshs. 106,715/- for rest days was upheld; the employer failed to discharge its burden of producing employment records.
The employer bore the burden of availing employment records under section 74 of the Employment Act. It did not produce the OB recording attendance or any duty roster; the only record was a 2020 leave approval. The alleged reliever was never called to testify. In the absence of contrary evidence, the magistrate's weighed determination could not be disturbed.
Entitlement to gratuity on voluntary resignation
The award of gratuity of Kshs. 117,017/- was set aside in its entirety as the Respondent, having resigned voluntarily, did not fall within any category where gratuity is payable under the Regulation of Wages (Protective Security Services) Orders.
The applicable Regulation of Wages (Protective Security Services) (Amendment) Orders make no provision for gratuity for the protective services in the circumstances of a voluntary resignation. The trial court had itself found the Respondent willingly resigned, so there was no basis for the award and the Magistrate erred in granting it.
Award of costs of the suit absent a demand letter
The award of half costs to the Respondent was proper; the Magistrate's discretion was correctly exercised given partial success.
Costs are discretionary. The Magistrate did not grant the Respondent the entire costs of the claim, demonstrating she applied her mind to partial success. The Respondent asserted a demand was made through his resignation letter and a union letter. The appellate court found no error in the exercise of discretion and declined to disturb the award.
Legal principles established
#- A first appeal is heard on both facts and law; the first appellate court must revisit and re-evaluate the evidence and reach its own conclusions while allowing for the disadvantage of not having seen or heard the witnesses.
- Employment records including leave and attendance records are in the custody of the employer who complies with section 74 of the Employment Act, and failure to avail them weighs against the employer.
- Gratuity is payable only in the categories provided by the applicable Regulation of Wages (Protective Security Services) Orders; an employee who resigns voluntarily falls outside those categories.
Court orders
#- 1.The award of gratuity of Kshs. 117,017/- by the Learned Magistrate is set aside in its entirety
- 2.The findings of the Learned Magistrate on rest days are not disturbed
- 3.The award of half costs of the suit to the Respondent is not disturbed
- 4.There shall be no order as to costs on the appeal; each party to bear their own costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Employment and Labour Relations)
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Learned Magistrate's judgment in an employment claim
Relief refused
#Setting aside of the award for rest days (Kshs. 106,715/-)
The Appellant, as employer, failed to avail employment records (OB, duty roster) to displace the finding; the trial court's finding was not disturbed
Setting aside of the award for leave pay (Kshs. 39,006/-)
Not disturbed on appeal (respondent conceded a deduction of Kshs. 14,030/-; the judgment does not record an express determination varying this head, and it was not set aside)
Setting aside of the costs of the suit awarded to the Respondent
The Magistrate exercised discretion properly by awarding only half the costs given partial success
Costs of the appeal to the Appellant
The Appellant succeeded only on a minor, insignificant relief and a substantial aspect was resolved by consent
Costs
No order as to costs on the appeal; each party to bear their own costs of the Appeal. The award of half the costs of the suit to the Respondent was left undisturbed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent did not fall in any of the categories where gratuity would be payable. As such the award of gratuity is set aside in its entirety.
The Appellant was the employer and leave records are in the custody of an employer who complies with section 74 of the Employment Act.
As the first appellate court, I am duty bound to revisit and exhaustively re-evaluate the evidence presented before the trial court to arrive at my own independent conclusions
Since this is a very minor and insignificant relief from the decree and judgment of the Learned Magistrate and considering that a substantial aspect of the Appeal was resolved by the parties, there shall be no order as to costs on the appeal, meaning each party will bear their own costs for the Appeal.
In the Court's considered view, the Learned Magistrate did not fall into error in the award of costs and this award is not disturbed.
Issues in the judgment
#Internal date inconsistency: the consent adopting date is stated as 4th February 2024 while the consent itself is dated 22nd January 2025, which post-dates the stated adoption date and appears to be a typographical error for 2025.
The judgment refers to a 'notice to produce' failure in the Respondent's submissions but the court's rest-days analysis records that no OB or duty roster was availed; there is also an unexplained disparity between the award of Kshs. 39,006/- for leave pay and the Respondent's reference to Kshs. 39,009/-.
The judgment does not state the case number of the appeal, the parties' full names, or the neutral citation on its face.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kitema v Perfect Scan Limited (Appeal E039 of 2025) [2025] KEELRC 2682 (KLR)[2025] KEELRC 2682 (KLR)2 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Hatari Security Guards Limited v Oduor (Appeal E043 of 2024) [2025] KEELRC 1112 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1112/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.